//
[2017] FWCFB 3891
General information, not legal advice.
Fair Work Commission (Full Bench)
2017-07-25
Original judgment source is linked above.
For the reasons set out in the Respondent's Outline of Submissions Regarding Costs Application filed on 27 February 2017, the Respondent submits that:
(a) it should have been reasonably apparent to the Applicant prior to the filing of the Application that he had no reasonable prospects of success; and
(b) it should have been reasonably apparent to the Applicant early in the Proceedings that the Application had no reasonable prospects of success and, by failing to discontinue the Proceedings until 31 January 2017, the Applicant caused the Respondent to incur costs by unreasonably continuing the Proceedings.
The Respondent submits that, had the Applicant not continued with the Proceedings and the Application had been determined by the Commission, by reason of the jurisdictional objections raised by the Respondent, the Applicant would have been unsuccessful in his Application. In these circumstances, the Respondent would have had grounds to seek costs against the Applicant on the same basis on which they are now sought. Had that occurred, the Respondent's costs would have been in excess of the costs incurred as at the date the Applicant discontinued the Proceedings.'[13]
[24] In his response to the Costs Application Mr Portelli submitted:
'I believe that I had a claim that was valid and that the reasons I was forced into resigning were unjust and harsh. I had a good employment record and had no warnings with respect to my conduct or performance prior to the incident and complaints that led to me being forced to resign. The filing of the Notice of Discontinuance was not due to the fact that you felt that you would not win the case. I certainly did not file the case with an intention to be vexatious in any way. It was my illness and my concern for my Fiancé - Asli Ozkasim and her employment security which were motivating factors for me to discontinue proceedings.
I acknowledge that my former employer Baxter Healthcare did incur legal costs in preparing for the hearing but the fact that the hearing did not proceed would have limited those costs.
In summary I would like to say that I never believed that my case had 'no chance of success' nor was it Vexatious in any way. I still believe that if I was given the chance to bring my case before the Commission that I would have an great chance of success, had it not been the fact that I was late with my submission - which I was oblivious to at the time I would have a great chance of success, but given the advice from the union in both cases and the circumstances at the time and my condition which involved various medications for my injury and my depression I do not believe I was thinking straight enough to make informed decisions. As my GP is currently on leave I will endeavour to get a certificate that indicates that I was unable to continue with proceedings due to my anxiety and depressive state. I do not find myself in the position to be able to cover any costs as I am still unemployed.'[14]
[25] As mentioned above, on 9 May 2017 Commissioner Johns dismissed Baxter Healthcare's Amended Costs Application. The Commissioner dealt with the legislative framework at paragraphs [13]-[23] of the Decision. At [18] and [19] the Commissioner observes[15] that determining whether an application was made 'vexatiously' looks to the motive of the applicant in making the application and that in order for Mr Portelli's Application to be regarded as 'vexatious' within the meaning of s.611 the main purpose of the Application must have been to harass, annoy or embarrass Baxter Healthcare or there must have been another purpose for the Application, other than the settlement of the issues arising in it.
[26] The Commissioner went on to observe[16] that for Mr Portelli's Application to be characterised as being made 'without reasonable cause' (within the meaning of s.611(2)(a)) he must find that:
(i) it was 'so obviously untenable that [it could not] possibly succeed',
(ii) it was 'manifestly groundless',
(iii) it was 'so manifestly faulty that it [did] not admit of argument',
(iv) it 'disclose[d] a case which the [Commission] is satisfied [could not] succeed', or
(v) under no possibility [could] there be a good cause of action'
[27] The Commissioner goes on to observe:
'I may also consider whether, at the time the application was made, there was a 'substantial prospect of success.' Importantly, it is inappropriate to find that an unfair dismissal application was without reasonable cause if success depends on the resolution of an arguable point of law.
a) an application is not without reasonable cause just because the Commission rejects a person's arguments, and
b) a proceeding is not to be classed as being instituted without reasonable cause simply because it fails, but rather in circumstances where on the applicant's own version of the facts, it is clear that the proceeding must fail,
it must follow that an unfair dismissal application is not without reasonable cause or instituted without reasonable cause just because the applicant, at some point, decides to file a Notice of Discontinuance.
In summary, a finding that an unfair dismissal application has no reasonable prospects of success should be reached with extreme caution and should only be reached when an application is 'manifestly untenable or groundless'.[17] (footnotes omitted)
[28] As to s.400A the Commissioner observes that it sets out additional circumstances in which the Commission can make costs orders against parties in unfair dismissal cases and that:
'What is unreasonable will depend on the circumstances. It is intended that costs only be ordered where there is clear evidence of unreasonable conduct.'[18]
[29] The Commissioner sets out the submissions of the respective parties at [24] - [27] of the Decision. The Commissioner's consideration of the s.611 application is set out at [30] - [67]. The Commissioner was not satisfied that the Application was made vexatiously[19] noting that:
'In his written material and before the Commission during the costs hearing Mr Portelli presented as a plain and uncomplicated individual who, it seemed, had some difficulty in understanding the matters alleged against him. Rather than being motivated to harass, annoy or embarrass Baxter, Mr Portelli presented (in his written material and before the Commission) as someone who genuinely and strongly believed he had been constructively dismissed and unfairly so.
Nothing in the evidence before the Commission demonstrated that Mr Portelli was motivated by the intention of engaging with the Commission in a manner that was vexatious with the intent to harass or embarrass Baxter or to gain a collateral advantage.
There is nothing in the evidence before me that would enable me to make a finding that Mr Portelli had any other motive in pursuing his dismissal other than to seek justice in his mind for what he believed was an unfair dismissal. On that basis I do not find Mr Portelli to have made a vexatious application.'[20]
[30] As to whether Mr Portelli's Application was made 'without reasonable cause' (s.611(2)(b)) the Commissioner observed[21]:
"...upon the facts apparent to the Applicant at the time of instituting to Proceedings, a reasonable person reviewing all the circumstances of the matter would have come to the view that there was no substantial prospect of success, and therefore the application was made without reasonable cause."
Baxter correctly frames the issues to be determined. In considering whether Mr Portelli pursued his application 'without proper cause' or 'reasonable cause' an assessment needs to be made as to whether the application had no reasonable prospects of success, and if done objectively, that fact should have been reasonably apparent to Mr Portelli.'
[31] The Commissioner was not persuaded that it should have been reasonably apparent to Mr Portelli that his Application has no reasonable prospect of success. In reaching his decision the Commissioner had regard to each of the Objections raised by Baxter Healthcare to Mr Portelli's Application.
[32] As to the extension of time objection the Commissioner concluded:
'Having reviewed the elements of s.394(3) it is readily apparent that it would have been open to the Commission to find, on balance, in the exercise of its discretion that it was satisfied that there were exceptional circumstances warranting the applicant being allowed a further period for his UFD Application to be made (i.e. being granted an extension of time to lodge his application). That is to say, the applicant's extension of time application was not doomed to fail even on his own version of events.'[22]
[33] As to the Settlement Agreement objection the Commissioner concluded:
'Genuine consent is an essential requirement and if the applicant could have established that he lacked the capacity to enter into the Settlement Agreement it may have been set aside. It would not be the first time that this Commission has given weight to the circumstances under which a settlement agreement/deed was executed.'[23] (footnote omitted)
[34] Finally, as to the objection that Mr Portelli had not been dismissed, the Commissioner held:
'It seems to me that the applicant's argument that he was constructively dismissed was not without merit.'[24]
[35] The Commissioner's conclusion in respect of s.611(2)(b) is set out at [65] - [66] of the Decision:
'Having considered each of the objections raised by the respondent, it is apparent that a reasonable person (in this case Mr Portelli) at the time of making his application, there was no substantial information before him in relation to his unfair dismissal claim that would indicate to him that he was likely to be unsuccessful, especially given there was a dispute about whether there was a constructive dismissal and whether, at the time that he entered into the Settlement Agreement, he had the capacity to do so.
Mr Portelli cannot be said to have made an application 'without reasonable cause'
within the meaning of s.611(2)(a) or in circumstances where there was 'no reasonable
prospect of success'. The fact that he filed a Notice of Discontinuance is not admission of the same. As previously stated the test is not whether the application might have been successful, but whether the application should not have been made. On Mr Portelli's own version of the facts, it was not clear that the proceedings would ultimately fail.'
[36] The Commissioner's consideration of the s.400A application is set out at [68] - [70] of the Decision:
'The considerations relevant to whether the applicant was unreasonable in continuing with the matter are the same as those addressed above in answer to Baxter's submission that,
"...the reference point for determining whether section 611(2)(b) of the FW Act is satisfied cannot be limited to the time at which the application is made but applies in the course of proceedings until the time at which the matter is determined by the Commission or discontinued."
My preliminary view expressed during the hearing was that from 5 October 2017 the applicant was on notice about the likely success of the respondent's objection to the extension of time.
However, for the reasons set out above, having now considered the matter more carefully, I am not satisfied that the applicant unreasonably continued with the UFD Application until he discontinued it on 31 January 2017. I accept that, at all times, the applicant had a difficult race to run if he was to hurdle the objections raised by the respondent, but, had he persevered, those hurdles were not insurmountable.'
[37] The Commissioner then sets out his conclusion at [71] - [77] of the Decision:
'For the reasons set out above the Commission, as presently constituted, is not satisfied that Mr Portelli's application was made vexatiously or without reasonable cause. Nor is the Commission, as presently constituted, satisfied that it should have been reasonably apparent to Mr Portelli that his application had no reasonable prospect of success. Therefore, the Commission has no jurisdiction pursuant to s.611 of the FW Act to order costs.
I accept that Baxter incurred significant costs to prepare for, and to defend proceedings in this matter. However, for the reasons above I am not satisfied that there is any jurisdiction to depart from the presumption against awarding costs.
In all the circumstances of this matter the Commission, as presently constituted, is not satisfied that it was unreasonable for Mr Portelli to instigate proceedings. Further, the Commission, as presently constituted, is not persuaded that s.400A of the FW Act is enlivened and therefore the Commission has no jurisdiction to order costs pursuant to s.400A of the FW Act.
Having determined that the Commission does not have jurisdiction to order costs in this matter it is not necessary for me to say anything further about the exercise of the discretion. However, even if the jurisdiction to order costs pursuant of s.611 or 400A was enlivened, I would have declined to order costs in this case as a matter of discretion. This is because, it was obvious to me that as a self-represented applicant, Mr Portelli likely struggled to fully understand the technical aspects of the jurisdictional hurdles he had to overcome in order for his matter to proceed.
There was no evidence to suggest that Mr Portelli did not genuine feel he might be successful in his UFD Application. Mr Portelli is unemployed and was merely attempting to pursue a cause of action because he genuinely felt there was an injustice attached to the cessation of his employment with Baxter. Further, in discontinuing the UFD Application without reaching an agreement with Baxter that it would not pursue costs against him because he was relying on the advice of his union, Mr Portelli was badly served by that advice (as is evident by the application presently before me). This was akin to representative error on behalf of his union.
For the reasons given, Baxter's application for costs pursuant to s.400A and s.611 of the FW Act is dismissed.'
[38] An order[25] dismissing Baxter Healthcare's Amended Costs Application was issued on the same day as the Decision.
[39] The Notice of Appeal filed by Baxter on 29 May 2017 outlines a number of grounds for appeal with respect to errors as to jurisdiction, the exercise of discretion and errors as to fact. On 9 June 2017 HWL filed an Amended Notice of Appeal and sought leave to amend its grounds of appeal to add paragraph 4 to the alleged errors of jurisdiction (see underlined paragraph below). The amended grounds of appeal are set out below.
c. the applicant had voluntarily entered into a settlement agreement;
d. the applicant had advised the Commission that he would discontinue the application.'
[40] No objection was raised to the application for leave to amend the grounds of appeal and leave was granted.
[41] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Fair Work Commission's (FWC) powers on appeal are only exercisable if there is error on the part of the primary decision maker.[26] There is no right to appeal and an appeal may only be made with the permission of the FWC. Section 604 provides:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).
(3) A person may appeal the decision by applying to the FWC.
[42] The test to be applied to the determination of permission to appeal depends on the characterisation of the decision subject to appeal. In the usual case s.604(2) applies. That subsection requires the FWC to grant permission to appeal if satisfied that it is 'in the public interest to do so'. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[27] The public interest is not satisfied simply by the identification of error, or a preference for a different result.[28] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:
'... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...'[29]
[43] Other than the special case in s.604(2), the grounds for granting permission to appeal in what we have referred to as 'the usual case', are not specified. Considerations which have traditionally been adopted in granting 'leave to appeal' and which would therefore usually be treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused.[30] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[31] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[32]
[44] As mentioned in the note to s.604(2), if the decision subject to appeal was made under Part 3-2 - Unfair Dismissal - of the FW Act, then s.400(1) provides that permission to appeal must not be granted unless the Commission considers that it is 'in the public interest to do so'. Further, in such matters appeals on a question of fact may only be made on the ground that the decision involved a 'significant error of fact' (s.400(2)). In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as 'a stringent one'.[33]
[45] The appeal before us relates to the Decision to dismiss the Appellant's Amended Costs Application. The Amended Costs Application was made under ss 400A and 611 of the FW Act. Section 400A is in Part 3-2 of the FW Act and hence the more stringent test in respect of permission to appeal, in s.400, applies. Section 611 is in Part 5-1 of the FW Act and both parties contend that, consistent with the view expressed in Holland v Nude Pty Ltd (t/as Nude Delicafe),[34] the part of the Decision which dismissed the Appellant's s.611 costs application is not 'a decision made by the FWC under [part 3-2]' within the meaning of s.400(1). Hence the more stringent test in respect of permission to appeal does not apply.
[46] It follows that the relevant test in respect of permission to appeal depends upon which part of the appeal from the Decision is being considered. Section 400 applies to the appeal in respect of the decision to dismiss the Appellant's s.400A application and permission must not be granted unless we consider that it is in the public interest to do so. However that part of the appeal which concerns the decision to dismiss the Appellant's s.611 application is not subject to s.400 and the general test in respect of permission to appeal applies (as set out at [42] to [43] above).
[47] We propose to proceed on the basis advanced by the parties, but wish to note that the position is not free from doubt.[35] Further, as will become apparent, the determination of this issue has no practical consequence in respect of this appeal.
[48] Before turning to the submissions advanced in support of the appeal we propose to set out the relevant statutory provisions.
[49] Section 400A of the FW Act provides as follows:
(1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.
(2) The FWC may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402.
(3) This section does not limit the FWC's power to order costs under section 611.'
[50] Item 4 of the Fair Work Amendment Bill 2012 inserted a new section 400A into the FW Act to enable the Fair Work Commission to order costs against a party to an unfair dismissal matter (the first party) if it is satisfied that the first party caused the other party to the matter to incur costs by an unreasonable act or omission in connection with the conduct or continuation of the matter.[36] The explanatory memorandum provides as follows:
As with the new power to dismiss applications under section 399A, the power to award costs under section 400A is not intended to prevent a party from robustly pursuing or defending an unfair dismissal claim. Rather, the power is intended to address the small proportion of litigants who pursue or defend unfair dismissal claims in an unreasonable manner. The power is only intended to apply where there is clear evidence of unreasonable conduct by the first party.
The FWC's power to award costs under this provision is discretionary and is only exercisable where the first party (whether the applicant or respondent) causes the other party to incur costs because of an unreasonable act or omission. This is intended to capture a broad range of conduct, including a failure to discontinue an unfair dismissal application made under section 394 and a failure to agree to terms of settlement that could have led to the application being discontinued.
However, the power to award costs is only available if the FWC is satisfied that the act or omission by the first party was unreasonable. What is an unreasonable act or omission will depend on the particular circumstances but it is intended that the power only be exercised where there is clear evidence of unreasonable conduct by the first party.
[51] Section 611 of the FW Act provides as follows:
(1) A person must bear the person's own costs in relation to a matter before the FWC.
(2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if:
(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or
(b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person's application, or the first person's response to the application, had no reasonable prospect of success.
Note: The FWC can also order costs under sections 376, 400A, 401 and 780.
(3) A person to whom an order for costs applies must not contravene a term of the order.
Note: This subsection is a civil remedy provision (see Part 4 1).'
[52] The explanatory memorandum provides as follows:
[53] In essence, the Appellant contends that the Commissioner should have found that the Application had been made 'without reasonable cause' (within the meaning of s.611(2)(a)) and, further, that the Commissioner should have been satisfied that 'it should have been reasonably apparent to [the Applicant] that the [Application] ... had no reasonable prospect of success' (within the meaning of s.611(2)(b)). The Appellant also contends that the Commissioner should have found the Applicant's continuation of the matter constituted an 'unreasonable act' (within the meaning of s.400A).
[54] The Appellant contends that permission to appeal should be granted because:
'... the decision raises issues of importance and general application. It is counter intuitive and attended with sufficient doubt to warrant reconsideration. It raises unusual issues. The decision contains errors as to jurisdiction and to the exercise of discretion.'[37]
[55] It is convenient to deal first with the alleged errors as to jurisdiction. The Appellant submits that the Commissioner made four errors as to jurisdiction.
(i) The Commissioner erred by dealing with the Objections separately rather than as a whole.
[56] The Appellant submits that s.611(2)(a) mandates reference to the application as a whole in determining whether the application has been made 'without reasonable cause', rather than applying the test discretely to each argument that has been raised. It is argued that the same process should apply to the tests 'unreasonable act' in s.400A(1). The Appellant submits that the difference is important for the following reasons:
'If the Commission examines each step separately, it may be possible to determine that each step, for example, has reasonable prospects of success even though the proceeding as a whole does not. The likelihood of having reasonable prospects of success declines further with every step in the process. If the objections had been looked at as a whole; the Commissioner should have found that there were no reasonable prospects of success.'[38]
[57] We accept the logic of the proposition advanced by the Appellant. In circumstances where an application faces numerous barriers or impediments to success it is necessary to consider the cumulative effect of the various impediments in deciding whether the application was made 'without reasonable cause' (s.611(2)(a)) or 'had no reasonable prospect of success' (s.611(2)(b)). In the present matter the Appellant contends that the Commissioner erred in that while he considered each of the Objections separately he failed to consider the combined effect of the Objections in determining whether the Application was made 'without reasonable cause'.
[58] The Appellant's point rests on the proposition that the Commissioner did not consider the Objections as a whole in deciding whether the application had been made 'without reasonable cause' or 'had no reasonable prospect of success'.
[59] The Commissioner dealt with the extension of time objection at [59] of the Decision; the settlement objection at [63] and the 'not dismissed' objection at [57] and [64]. While the Commissioner dealt separately with each of the Objections we are not persuaded that he erred in the manner contended by the Appellant. Contrary to the Appellant's submission a fair reading of the Decision suggests that the Commissioner did in fact look at the Objections as a whole, as is apparent from the passages set out below:
'[41] The material filed by the respondent suggested that the applicant had a difficult task to overcome the objections raised...
[42] Because the UFD Application was discontinued none of the contested issues were put to the test. On the materials before the Commission it is difficult to determine whether Mr Portelli's matter would have had a reasonable prospect of success had an extension of time been granted...
[65] Having considered each of the objections raised by the respondent, it is apparent that a reasonable person (in this case Mr Portelli) at the time of making his application, there was no substantial information before him in relation to his unfair dismissal claim that would indicate to him that he was likely to be unsuccessful, especially given there was a dispute about whether there was a constructive dismissal and whether, at the time that he entered into the Settlement Agreement, he had the capacity to do so.' (emphasis added)
[60] Further, as to the s.400A application the Commissioner states:
'[70] However, for the reasons set out above, having now considered the matter more carefully, I am not satisfied that the applicant unreasonably continued with the UFD Application until he discontinued it on 31 January 2017. I accept that, at all times, the applicant had a difficult race to run if he was to hurdle the objections raised by the respondent, but, had he persevered, those hurdles were not insurmountable.' (emphasis added)
[61] The Appellant has not made good its contention that the Commissioner did not consider the Objections as a whole. It follows that the Commissioner did not err in the manner contended by the Appellant.
[62] We would also observe that the point raised on appeal was not taken in the proceedings at first instance.[39] Appeals are for the purpose of correcting error, not to provide an opportunity for unsuccessful parties to recast the case they put at first instance.
(ii) The Commissioner erred in adopting a subjective test for determining 'reasonable prospects of success'.
[63] The Appellant submits that the Commissioner committed jurisdictional error in finding (at [38], [72] and [74] of the Decision) that reasonable prospects of success should be reasonably apparent to the applicant rather than to a reasonable person. This is said to be an error because the test under s.400A and 611 is objective.
[64] The passages from the Decision relied on by the Appellant are set out below:
'[38] There is no evidence before me that would enable me to make a finding that Mr Portelli was aware, or should have been aware that his UFD Application would not succeed at the time of lodging his UFD Application...
[72] For the reasons set out above the Commission, as presently constituted, is not satisfied that Mr Portelli's application was made vexatiously or without reasonable cause. Nor is the Commission, as presently constituted, satisfied that it should have been reasonably apparent to Mr Portelli that his application had no reasonable prospect of success. Therefore, the Commission has no jurisdiction pursuant to s.611 of the FW Act to order costs...
[74] In all the circumstances of this matter the Commission, as presently constituted, is not satisfied that it was unreasonable for Mr Portelli to instigate proceedings. Further, the Commission, as presently constituted, is not persuaded that s.400A of the FW Act is enlivened and therefore the Commission has no jurisdiction to order costs pursuant to s.400A of the FW Act.'
[65] The Decision must be read as a whole and considered fairly, such that what may be characterised as infelicitous expressions do not too readily give rise to the inference of error[40]:
[66] Contrary to the Appellant's submission, the passages referred to do not support the proposition that the Commissioner applied a subjective test to the determination of whether the Application had 'no reasonable prospect of success'. Indeed the passages at [38] and [72] adopt the language of s.611(2)(b), that is 'it should have been reasonably apparent to [the Applicant] that his Application ... had no reasonable prospect of success'.
[67] It is also relevant to observe that at [36] to [37] of the Decision the Commissioner considers the issue to be determined in deciding whether Mr Portelli's Application was made 'without reasonable cause' (s.611(2)(b)) and appears to clearly frame the test in objective terms:
"...upon the facts apparent to the Applicant at the time of instituting to Proceedings, a reasonable person reviewing all the circumstances of the matter would have come to the view that there was no substantial prospect of success, and therefore the application was made without reasonable cause."
[37] Baxter correctly frames the issues to be determined. In considering whether Mr Portelli pursued his application 'without proper cause' or 'reasonable cause' an assessment needs to be made as to whether the application had no reasonable prospects of success, and if done objectively, that fact should have been reasonably apparent to Mr Portelli.'
[68] We are not persuaded that the Commissioner erred in the manner contended by the Appellant.
(iii) The Commissioner erred in adopting the same test for 'without reasonable cause'; 'no reasonable prospects of success' and 'unreasonable act' in circumstances where each of these phrases has a different meaning and where 'without reasonable cause' is the most stringent.
[69] The Appellant submits that the Commissioner described the test for 'without reasonable cause' and 'no reasonable prospects of success' as being manifestly untenable or groundless.
[70] The Appellant concedes that the Commissioner's approach to the determination of whether the Application was made 'without reasonable cause' and whether it should have been reasonably apparent that the Application 'had no reasonable prospect of success', was consistent with the Full Bench authority (namely, Baker v Slava Resources [2011] FWAFB 4014, 'Baker'). It is further conceded that no contrary submission was put at first instance and that raising a new point on appeal is usually not permitted.[41]
[71] However, the Appellant submits that the normal restriction on permission to appeal (that is, permission is usually refused in respect of a new point not taken at first instance), should not apply because:
➢ there is a contrary Full Bench decision (ACI Operations v Cook (2012) 221 IR 361, 'ACI') which states that the two phrases have a different meaning and that the criteria 'no reasonable prospect of success' is lower and wider than the term 'without reasonable cause'. Baker is contrary to ACI; Baker is wrong and ACI should be preferred;
➢ it is expedient to resolve the difference between ACI and Baker; and
➢ the facts have been established and the point is one of construction.
[72] The Appellant submits that while the Applicant's case was manifestly untenable or groundless in any event, it would also fail on any more lenitive test.
[73] The Appellant also contends that the Commissioner made a further error when he seems to adopt the same formulation in relation to the test of unreasonable act or omission at [70] of the Decision, where he uses the words 'for the reasons set out above', as follows:
'[70] However, for the reasons set out above, having now considered the matter more carefully, I am not satisfied that the applicant unreasonably continued with the UFD Application until he discontinued it on 31 January 2017. I accept that, at all times, the applicant had a difficult race to run if he was to hurdle the objections raised by the respondent, but, had he persevered, those hurdles were not insurmountable."
[74] The Appellant submits that the test in s.400A requires the Commission to examine the particular circumstances of the case, untrammelled by any requirement for the case to be manifestly untenable or groundless.'
[75] As conceded by the Appellant, the Commissioner's approach to the determination of the requisite jurisdictional facts was consistent with Full Bench authority and the point sought to be agitated on appeal was not put at first instance. We would also observe that, having regard to the particular circumstances in this case, the adoption of the test posited by the Appellant would be unlikely to affect the ultimate result. It is for these reasons that we do not propose to grant permission to appeal in aspect of this ground.
[76] In refusing permission in respect of this issue we do not wish to be taken to be dismissive of the construction point raised. The merits of that argument await consideration in an appropriate case.
(iv) The Commissioner committed jurisdictional error in determining (at [14], [16] and [73] of the Decision that there is a presumption contained in the FW Act against awarding costs. It is submitted that a presumption in such circumstances is a legal rule to be applied in the absence of conflicting evidence and, contrary to the view expressed by the Commissioner, once the jurisdictional gateway in s.400A or s.611 is opened, there is no presumption either for or against the awarding of costs.
[77] The passages from the Decision which are relied on by the Appellant in support of the above proposition are set out below:
'[14] It is important to remember that there is a presumption contained in the FW Act against awarding costs and that the power to award costs is discretionary. It is a two stage process:
b) if there is power, consider whether the discretion to award costs is appropriate.
[15] In another application for costs, I observed:
"[5] It might be said that the Applicant has suffered enough ... and that the imposition of a costs order is akin to kicking a man when he is down. It might be said that an Application for Costs in the present circumstances lacks a sense of Christian charity or empathy with the Applicant's plight.
[6] However, Respondents aggrieved by the costs they have incurred in the defence of an unsuccessful unfair dismissal application, are not required to act charitably or empathetically. Further, whether an Application for Costs offends against common notions of decency is irrelevant.
[7] Consequently, the Commission, as presently constituted, has not entertained thoughts of charity, empathy or decency in deciding whether the Respondent should succeed in its Application for Costs. However, s.577 of the FW Act does require the Commission to perform its functions and exercise its powers in a manner that is fair and just. Further, s.578 of the FW Act which requires the Commission to take into account equity, good conscience and the merits of matter."
[16] Those remarks are equally apposite in the present matter...
[73] I accept that Baxter incurred significant costs to prepare for, and to defend proceedings in this matter. However, for the reasons above I am not satisfied that there is any jurisdiction to depart from the presumption against awarding costs.' (emphasis added)
[78] As we have mentioned, the Decision must be read as a whole and considered fairly. On a fair reading of the Decision as a whole we are not persuaded that the Commissioner intended to apply a legal presumption of the type contended by the Appellant, rather, he simply used an infelicitous expression to make the point that persons who incur legal costs in Commission proceedings generally pay their own costs. So much is apparent from the opening paragraphs of the Decision, where the Commissioner says:
'[1] People who incur legal costs in a matter before the Fair Work Commission (Commission) generally pay their own costs (s.661(1)). However, the Commission has the discretion to order one party to an unfair dismissal matter to pay the other party's legal or representational costs, but only where the Commission is satisfied the matter was commenced or responded:
[2] Costs may be awarded to one party if the Commission is satisfied that the costs were incurred as a result of an unreasonable act or omission of the other party (s.400A(1)).'
[79] The above observations are consistent with the relevant statutory provisions, the extrinsic material and Full Bench authority. Section 611(1) expressly states that 'A person must bear the person's own costs in relation to a matter before the FWC'. Section 611(2) provides an exception to that general proposition - so much is clear from the use of the word 'however' at the commencement of the subsection. This construction is confirmed by the explanatory memorandum which states:
'Subclause 611(1) provides that generally a person must bear their own costs in relation to a matter before FWA. However, subclause 611(2) provides an exception to this general rule in certain limited circumstances.'[42]
[80] Further, as observed the Full Bench in Church v Eastern Health[43]:
'In court proceedings the usual practice is that an order for costs follows the outcome of the substantive proceedings. ... the Commission context is different. The Commission's power to order costs only arises in the context of ss 376, 400A, 401, 611 and 780 of the FW Act. There is no general practice of cost following the event...
Section 611 sets out a general rule - that a person must bear their own costs in relation to a matter before the Commission (s 611(1)) - and then provides an exception to that general rule in certain limited circumstances.'
[81] Contrary to the Appellant's submission the Commissioner did not err in the manner contended. However, we would observe that the remarks set out at paragraph [15] of the Decision are gratuitous and unnecessary. They may be seen as wrongly casting aspersions on parties who seek to use the cost provisions of the Act. But the inclusion of paragraph [15] does not amount to an error warranting correction on appeal.
[82] In addition to the alleged jurisdictional errors, the Appellant submits that the Commissioner made a serious error of fact in finding (at [38] and [76]) that there was no evidence that would indicate to the respondent that he was likely to be unsuccessful in the circumstances given the Objections.
[83] The passages from the Decision relied on by the Appellant are set out below:
'[38] There is no evidence before me that would enable me to make a finding that Mr Portelli was aware, or should have been aware that his UFD Application would not succeed at the time of lodging his UFD Application...
[76] There was no evidence to suggest that Mr Portelli did not genuine feel he might be successful in his UFD Application. Mr Portelli is unemployed and was merely attempting to pursue a cause of action because he genuinely felt there was an injustice attached to the cessation of his employment with Baxter. Further, in discontinuing the UFD Application without reaching an agreement with Baxter that it would not pursue costs against him because he was relying on the advice of his union, Mr Portelli was badly served by that advice (as is evident by the application presently before me). This was akin to representative error on behalf of his union.' (emphasis added)
[84] We think that the Appellant is making too much of what is merely an infelicitous expression. It is plain from a reading of the Decision as a whole that the Commissioner accepted that there was evidence to support a finding that the applicant should have been aware that this application would be unsuccessful, but he concluded that the evidence was insufficient to establish the requisite jurisdictional facts.
[85] Finally, the Appellant submits that the Commissioner erred in the exercise of this discretion.
[86] At paragraph [75] of the Decision the Commissioner observed that having determined that the requirements in ss. 400A and 611 had not been met and hence the Commission did not have jurisdiction to order costs, it was not necessary for him to say anything further about the exercise of discretion. The Commissioner went on to say:
'[75] Having determined that the Commission does not have jurisdiction to order costs in this matter it is not necessary for me to say anything further about the exercise of the discretion. However, even if the jurisdiction to order costs pursuant of s.611 or 400A was enlivened, I would have declined to order costs in this case as a matter of discretion. This is because, it was obvious to me that as a self-represented applicant, Mr Portelli likely struggled to fully understand the technical aspects of the jurisdictional hurdles he had to overcome in order for his matter to proceed.
[76] There was no evidence to suggest that Mr Portelli did not genuine feel he might be successful in his UFD Application. Mr Portelli is unemployed and was merely attempting to pursue a cause of action because he genuinely felt there was an injustice attached to the cessation of his employment with Baxter. Further, in discontinuing the UFD Application without reaching an agreement with Baxter that it would not pursue costs against him because he was relying on the advice of his union, Mr Portelli was badly served by that advice (as is evident by the application presently before me). This was akin to representative error on behalf of his union.'
[87] The Appellant submits that the Commissioner erred in the consideration of the discretion to award costs in:
➢ adopting a test that took into account the subjective characteristics of the applicant as a self represented litigant;
➢ taking into account the advice given by the applicant's representatives; and
➢ in taking into account the amount of costs sought by Baxter Healthcare.
[88] It is convenient to deal with the last matter first.
[89] The Appellant submits that in the exercise of his discretion the Commissioner took account of an irrelevant consideration, namely the amount of costs sought by Baxter Healthcare.
[90] We accept that the quantum of costs sought is irrelevant to the question of whether or not a costs order should be made. Of course, once the Commission has decided to exercise the discretion to make a costs order the question of the costs sought becomes relevant in determining the order to be made.
[91] The Appellant's point rest on the proposition that the Commissioner took into account the amount of costs sought in the exercise of his discretion. The Appellant points to paragraph [24] of the Decision in support of its contention. Paragraph [24] appears under the heading 'Submissions of Baxter', as follows:
'In the original Security for Costs Application Baxter sought $14,985.00. In its amended Security for Costs Application it sought $10,332.00. In either case it can be observed that, when the amounts charged are compared with the work described in the itemised schedule of costs, in choosing HWLE as its representative Baxter chose a "Rolls Royce service". That is a matter for it, but it is doubtful that all the costs charged would survive a party-party costs assessment as to what was truly necessary and reasonable in a matter such as this. The following exchange highlights my concern,
The Commissioner: .... You can run your case how you like. What I'm trying to figure out here - you know - what is fair and reasonable in the necessary defence of this matter, such that if I were to find that the application made by Mr Portelli was doomed to fail which parts of that should he bear the liability for? Now, you know in item four in the itemised schedule it says, "Considering and settling correspondence to Fair Work Commission and applicant and security for costs."
When I look at the letter of the 22 December it says, "Dear Associate refer to the above matter. Please find attached security for costs application. We confirm the applicant in this matter, Mr Portelli, has been copied into this email and we hereby service the security for costs application on Mr Portelli." And then I look at the security for costs application and are fairly standard in form. I can't understand how considering that takes 800 bucks worth of time - honestly - really?
Mr Swebeck: .... This is item four, Commissioner?
Mr Swebeck: Without knowing what the correspondence was with the client I would suggest that in our view, Commissioner, that that is a reasonable amount of time spent in preparing the application, preparing the correspondence to the Fair Work Commission and also any correspondence that might have been sent to the client in terms of the seeking of instructions as to where those security of costs applications should be filed.
The Commissioner: But who did that considering and settling?
Mr Swebeck: I can't recall, Commissioner, without the - it probably would have been my time - but I can't confirm that.
The Commissioner: Well, it took you nearly two hours to read a one, two, three, four paragraph email and a standard form six-page application for security of costs. You've got to be joking here.'
[92] As we have mentioned, the Commissioner deals with the exercise of his discretion in paragraphs [75] and [76] of the Decision, under the heading 'Conclusions', and there is no mention of the amount of costs sought in these passages. The Appellant advances the following submission in this regard;
'... we do not allege that his Honour referred to the question of costs in the paragraphs set out in his consideration and conclusion but that there is no doubt that his Honour was alive to the issue and was disturbed by the issue of costs and you'll find that specifically at paragraph 24 of the judgment which is at page 11 of the appeal book, and those comments are pejorative and uncalled for and it is not clear on what basis they are seen to be relevant by the Commissioner. But to the extent that they indicate the Commissioner's thinking they indicate that the Commissioner thought they were relevant and used that as part of the weighing process in his own internal reasoning.'[44]
[93] We are not persuaded that the Commissioner took the quantum of costs sought into account in the exercise of his discretion. The matter is not mentioned in that part of the Decision which deals with exercise of the Commissioner's discretion. We acknowledge that the remarks made at paragraph [24] of the Decision were unnecessary and, further, it would have been preferable that they were not made. But the inclusion of paragraph [24] does not amount to an error warranting correction on appeal.
[94] We now turn to the other challenges to the exercise of the Commissioner's discretion.
[95] We note at the outset that the relevant sections provide that if the requisite jurisdictional facts are established (relevantly, ss. 400A(1) and (2), and s.611(2)) then the Commission may make an order for costs. A costs order does not automatically follow upon a finding of the requisite jurisdictional fact. It is clear from the use of the word 'may' that the Commission retains a discretion as to whether or not to make an order for costs. In that regard these provisions may be contrasted with ss. 418(1) and 424(1), which provide that the Commission must make certain orders if certain jurisdictional facts are present.
[96] Sections 400A and 611 contain no positive indication of the considerations which the Commission must take into account in deciding how to exercise its discretion. The discretion conferred is expressed in general, unqualified, terms. As the High Court observed in O'Sullivan v Farrer[45] (O'Sullivan):
'Where a power to decide is conferred by statute, a general discretion, confined only by the scope and purposes of the legislation, will ordinarily be implied if the context (including the subject matter to be decided) provides no positive indication of the considerations by reference to which a decision is to be made.'[46]
[97] But, of course, the discretion conferred by ss. 400A(1) and 611(2) must be exercised judicially, that is to say not arbitrarily, capriciously or so as to frustrate the legislative purpose. Further, consistent with O'Sullivan, the discretion is also confined by the subject matter, legislative context and purpose.[47]
[98] The terms of ss. 400A and 611 operate to limit the scope of any order which may be made. Two limitations are inherent in s.400A(1):
(i) an order for costs may only be made 'against a party to a matter arising under [Part 3-2 Unfair Dismissal]; and
(ii) an order is confined to costs which were incurred by the other party 'because of an unreasonable act or omission' of the party to whom the order is directed.
[99] Section 611 operates more broadly, in that it confers a power to order a person to 'bear some or all of the costs of another person in relation to an application to the FWC'. Unlike s.400A, s.611 is not confined to matters arising under Part 3-2 of the FW Act. Nor is the power in s.611 expressly limited to a 'party' to an application, though a costs order under s.611(2) may only be made against a person who has either made an application or responded to an application.
[100] The legislative purpose of the provisions is also relevant. The relevant extrinsic material is set out at [49] and [52] above. In respect of s.400A, the explanatory memorandum makes plain that:
'... the power is intended to address the small proportion of litigants who pursue or defend unfair dismissal claims in an unreasonable manner. The power is only intended to apply where there is clear evidence of unreasonable conduct by the first party.'[48]
[101] The extrinsic material in respect of s.611 is of no assistance in discerning the legislative purpose. Given the limited argument on the point we do not propose to say anything further about the legislative purpose of these provisions.
[102] The legislative context is also relevant. The general provisions relating to the performance of the Commission's functions apply to the exercise of the Commission's discretion in s.400A and s.611. Sections 577 and 578 are particularly relevant in this regard. Section 577 states:
'FWC must perform its functions and exercise its powers in a manner that:
(b) is quick, informal and avoids unnecessary technicalities; and
(d) promotes harmonious and cooperative workplace relations.
Note: The President also is responsible for ensuring that FWC performs its functions and exercises its powers efficiently etc. (see section 581).'
'In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), FWC must take into account:
(a) the objects of this Act, and any objects of the part of this Act; and
(b) equity, good conscience and the merits of the matter; and
(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.'
[104] It follows from ss. 577 and 578 that in exercising the discretion to order costs the Commission must exercise its powers in a manner which is 'fair and just' and takes into account 'equity, good conscience and the merits of the matter.' The broad nature of these considerations suggests that the factors which are relevant to the exercise of the discretion are not confined in the manner proposed by the Appellant.
[105] The Appellant was given leave to draw our attention to any authorities in support of the proposition that the subjective circumstances of the person against whom a costs order is sought are irrelevant in considering whether to exercise the discretion to award costs. The Appellant subsequently drew our attention to two authorities: Latoudis v Casey[49] ('Latoudis') and Oshlack v Richmond River Council[50] ('Oshlack'). The Respondent submits that these authorities do not assist the Commission.
[106] Latoudis concerned the criteria to be applied by a court of summary jurisdiction in exercising a statutory discretion to award costs in criminal proceedings which have terminated in favour of a defendant. The Court divided in Latoudis. The majority (Mason CJ, Toohey and McHugh JJ) concluded that the exercise of discretion had miscarried, though for different reasons. Mason CJ and Toohey J held that in ordinary circumstances costs should be made in favour of a defendant against whom criminal proceedings had failed. Each acknowledged that there would be exceptions which would justify the refusal of costs. In the course of his judgement Mason CJ said:
'In ordinary circumstances it would not be just or reasonable to deprive a defendant who has secured the dismissal of a criminal charge brought against him or her of an order for costs... in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings...
I am persuaded that, in ordinary circumstances, an order for costs should be made in favour of a successful defendant. However, there will be cases in which, when regard is had to the particular circumstances, it would not be just and reasonable to order costs against the prosecutor or to order payment of all the defendant's costs. If, for example, the defendant, by his or her conduct after the events constituting the commission of the alleged offence, brought the prosecution upon himself or herself, then it would not be just and reasonable to award costs against the prosecutor.'[51]
[107] In the same case Toohey J held:[52]
'What has emerged from a number of decisions is recognition that costs are awarded by way of indemnity to the successful party and, expressly or impliedly, that they are not by way of punishment of the unsuccessful party...
If a prosecution has failed, it would ordinarily be just and reasonable to award the defendant costs, because the defendant has incurred expense, perhaps very considerable expense, in defending the charge...
Now, in a particular case there may be good reasons connected with the prosecution such that it would not be unjust or unreasonable that the successful defendant should bear his or her own costs or, at any rate, a proportion of them....a refusal of costs to a successful defendant will ordinarily be based upon the conduct of the defendant in relation to the proceedings brought against him or her.'
[108] The other member of the majority, McHugh J, stated a stricter test, namely that a successful defendant in summary proceedings:
'... has a reasonable expectation of obtaining an order for costs against the informant and that the discretion to refuse to make the order should not be exercised against him or her except for a reason directly connected with the charge or conduct of the proceeding.'[53]
[109] The Appellant submits that in a subsequent judgment, in Oshlack, the High Court held that 'there was no absolute rule with respect to the exercise of discretionary power and that, in the absence of disentitling conduct, a successful party was to be compensated by the unsuccessful party'[54] (emphasis added). We have emphasised the words 'and that' in the Appellant's submission because they suggest that in Oshlack the High Court accepted the proposition that in the absence of disentitling conduct a successful party was to be compensated by the unsuccessful party. If that is what the Appellant is putting, then it is incorrect. So much is clear from the joint judgment of Gaudron and Gummow JJ:
'There is no absolute rule with respect to the exercise of the power conferred by a provision such as s 69 of the Court Act that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party.'[55]
[110] The section of the Court Act referred to was in the following terms:
'Subject to the rules and subject to any other Act:
(a) costs are in the discretion of the Court;
(b) the Court may determine by whom and to what extent costs are to be paid; and
(c) the Court may order costs to be taxed or otherwise ascertained on a party and party basis or on any other basis.'
[111] The other member of the majority in Oshlack, Kirby J, also rejected the adoption of any general rule to the exercise of the costs discretion in s.60 of the Court Act:
'The decision in that case [ie Latoudis] does not, and could not, lay down a general rule that the only consideration to be taken into account in the exercise of a statutory costs discretion is the compensation of the successful party for the recoverable expense to which it has been put by the litigation...
It is because the general purpose of an order for costs in favour of a successful party is to provide compensation in the form of a partial indemnity for the costs incurred ... that legal costs will usually be ordered in favour of the successful party ... But the compensatory principle cannot be treated as an absolute rule. Otherwise, the discretion conferred in unqualified terms would indeed be shackled and confined.'[56]
[112] It is clear that in Oshlack the High Court rejected the proposition that the only consideration in the exercise of a statutory costs discretion is the compensation of the successful party for the cost to which it has been put by the litigation.
[113] In summary, the following general observations may be made about the discretion to order costs in ss. 400A and 611:
The discretion is expressed in general, unqualified, terms confined only by the subject matter, legislative context and purpose.
The terms of ss. 400A and 611 operate to limit the scope of any order which may be made (see [98] and [99] above).
The discretion must be exercised judicially, that is to say not arbitrarily, capriciously or so as to frustrate the legislative intent.
The discretion must be exercised in a manner which is 'fair and just', and takes into account 'equity, good conscience and the merits of the matter'.
[114] Based on the above observations we are not persuaded that the Commissioner erred in taking into account the subjective characteristics of the applicant as a self represented litigant or in having regard to the advice given by the applicant's representative. Of course the weight to be given to such considerations will vary depending on the circumstances in each case. Further, such considerations will have to be balanced against the fact that the other party has incurred costs in responding to an application that has been made vexatiously or without reasonable cause or which had no reasonable prospects of success, or in circumstances where the other party has incurred costs due to the unreasonable act or omission of the other party.
[115] As we have mentioned, the task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. We have had regard to the considerations which may attract the public interest (see [42] above) but we are not satisfied that it is in the public interest to grant permission to appeal. It follows that in respect of the appeal from the decision to dismiss the Appellant's s.400A application permission to appeal must be refused.
[116] Further, we are not persuaded that the Appellant has established an arguable case of error in respect of any aspect of the Decision; or that a substantial injustice may result if permission is refused. Nor are we persuaded that the Decision is attended by sufficient doubt so as to warrant its reconsideration. Accordingly, we do not propose to grant permission to appeal in relation to that part of the appeal which concerns the decision to dismiss the Appellant's s.611 application.
[117] Permission to appeal is refused.
[15] Citing Nilsen v Loyal Orange Trust (1997) 76 IR 180, 181; citing Attorney-General v Wentworth (1988) 14 NSWLR 481, 491; cited in Holland v Nude Pty Ltd (t/as Nude Delicafe) (2012) 224 IR 16 [7].
[16] Citing General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125, 129; cited in Walker v Mittagong Sands Pty Limited T/A Cowra Quartz (2011) 210 IR 370 [17].
[17] [2017] FWC 2523 at paras [20]-[21]
[26] This is so because on appeal FWC has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC [2000] HCA 47; (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
[27] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210; Coal & Alllied v Lawler [2011] FCAFC 54 at [44]- [46].
[28] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]- [27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; Ferrymen Pty Ltd v Maritime Union of Australia [2013] FWCFB 8025; and NSW Bar Association v Brett McAuliffe
[30] Also see CFMEU v AIRC [1998] FCA 1404; (1998) 89 FCR 200; and Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481
[31] Wan v AIRC [2001] FCA 1803 at [30]
[32] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]- [27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
[33] [2011] FCAFC 54; (2011) 192 FCR 78 at paragraph 43
[34] (2012) 224 IR 16 at 24
[35] See Australian Postal Corporation v Gorman [2011] FCA 975 and [37]; and Asciano Services Pty Ltd v Zak Hadfield [2015] FWCFB 2618
[36] Fair Work Amendment Bill 2012 explanatory memorandum at [168]
[37] Appellant's written submissions at [20]
[39] Transcript 11 July 2017 at paragraphs 151-160 and 294-312
[40] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [291]
[41] See ASU v Yarra Valley Water Corporation [2013] FWCFB 7453; (2013) 232 IR 440 at [24]- [25]
[42] Fair Work Bill 2008 explanatory memorandum at [2353]-[2354]
[43] (2014) 240 IR 377 at paras [25]-[26]
[44] Transcript 11 July 2017 at paragraph [239]
[46] Ibid at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ
[48] Fair Work Amendment Bill 2012 explanatory memorandum at [169]
[49] [1990] HCA 59; (1990) 170 CLR 534, esp. at 542-543 and 566-567
[50] [1998] HCA 11; (1988) 193 CLR 72 at [40] and [132]
[51] [1990] HCA 59; (1990) 170 CLR 534, esp. at 542-544
[54] Correspondence from HSWL 11 July 2017
Printed by authority of the Commonwealth Government Printer
Baxter Healthcare Pty Ltd T/A Baxter Healthcare
Mr Andrew Portelli [2017] FWCFB 3891
Appeal against decision [2017] FWC 2523 of Commissioner Johns at Sydney on 9 May 2017 in matter number U2016/11819 - application for costs - permission to appeal refused.
(1997) 76 IR 180
(2012) 224 IR 16
(1998) 89 FCR 200
(2011) 192 FCR 78
(2013) 232 IR 440
(2014) 240 IR 377
(1988) 193 CLR 72
(2012) 221 IR 361
(1988) 14 NSWLR 481
(1964) 112 CLR 125
(2011) 210 IR 370
(2000) 203 CLR 194
(1989) 168 CLR 210
(2010) 197 IR 266
(2001) 116 FCR 481
(1996) 185 CLR 259
(1990) 170 CLR 534
(1998) 193 CLR 72